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BIG VERDICT = BIG TAX BILL? NOT ANY MORE

The structuring (deferral) of attorneys’ fees has been affirmed by the Tax Court (Childs vs. Commissioner, 103 T.C. 634(1994), affirmed 898 F3d 856 (June 11, 1996).

While the 100% tax savings that a structured settlement offers a plaintiff is not available to their counsel, a 100% tax deferral is available. The ability to defer the payment of attorney fees to future years yields many benefits beyond the obvious tax savings from moving the receipt of fees into a lower tax bracket.

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A few of the additional benefits include:

  • Unlimited augmentation of the attorney’s retirement income(no yearly contribution ceilings like IRA’s, SEP’s , KEOGH’s or 401k’s);

  • College funds for children (or grandchildren);

  • Guaranteed cashflow to meet overhead expenses;

  • Meeting the diverse tax needs of different partners;

  • Assistance in the buying-out of retiring partners, etc.
Of course the attorney must not have constructive receipt of the funds. Any structuring of attorney fees must take place before the case is finalized (i.e., all monies exchanged, all documents signed, etc.).

Three of the most frequently asked questions that many attorneys have regarding structuring attorneys fees are:

  • If the plaintiff wants to cash-out his/her portion of the settlement, can the attorney still structure the attorney fees portion of the settlement?

  • Can the structured settlement payment stream for the attorney be 100% totally independent of the payment stream received by the planitiff?

  • If the fee has to be split among multiple partners, each of whom wants a different payout schedule, is a structuring of attorney's fees still viable?

The answer to all three questions is yes. Attorney’s fees can still be structured even if your client wants his portion in cash at the time of settlement. Insurance companies that write structured attorney fees will allow the attorney to design both the timing and amount of future payments totally independent of the plaintiff’s payout schedule. These insurance companies will allow each participating plaintiff attorney to design his or her own payout schedule independent of other plaintiff attorneys.

The flexibility inherent in structured settlements extends to the type of payments allowed. Attorney fees can be structured so that the periodic payments are received in any combination of payment types, including lump-sum payments, period certain payments (college funds) and lifetime payments. There can also be Cost of Living Adjustments (COLAs) and deferred starting dates.

While most insurance companies follow the usual requirements to structured settlements, they also include some special additional requirements such as hold harmless agreements, reinsurance agreements, separate assignment and application agreements for each attorney & claimant, etc.

Of course, the attorney’s fee agreement must allow for the attorney to receive all or a portion of their fee in the form of future periodic (structured) payments.